ALTAF AND ORS. Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) PETITIONERS who are arrayed as accused Nos. 1 and 2 in S.C. No. 106/2013 have called in question the order passed by the II -Additional Sessions Judge, Vijayapur, dated 07.03.2015 in altering the charges by deleting Section 306 r/w. Section 34 of IPC and adding provision under Section 302 r/w. Section 34 of IPC, exercising the power under Section 216 of Cr.P.C.

(2.) THE State through Sindagi police submitted charge sheet before the Court against the petitioners for the offences punishable under Sections 498 -A, 306 r/w. Section 34 of IPC. At the initial stages, after going through the contents of the entire charge sheet, the Court was also of the opinion that the charges should be framed for the offences punishable under Section 498 -A and 306 of IPC and accordingly, charges were framed. Subsequently, after recording of the evidence of PW. 1 by name Siraj, an application appears to have been made by the prosecution seeking indulgence of the Court to alter the charges by incorporating the offence under Section 302 of IPC. The prosecution mainly relied upon the postmortem examination report wherein the doctor has opined that the body of the female i.e., wife of accused No. 1 had some injuries i.e., contusional abrasion over lower and outer quadrant of left breast and there were injury over back of the trunk etc. It is stated by the doctor that those injuries were ante -mortem in nature. Though the application was seriously contested by the accused persons, the Trial Court has altered the charges incorporating the provision under Section 302 r/w. Section 34 of IPC and deleting the provision under Section 306 of IPC.

(3.) CHARGE sheet papers are also made available to the Court. On careful perusal of the entire charge sheet papers, it is clear that none of the witnesses have claimed that they are the eyewitnesses to the incident. All the witnesses have stated that the deceased has committed suicide by drowning in a well. Even the contents of the first information report disclose that on the date of the incident i.e., on 22.04.2012, there was quarrel in the house of the accused persons and they have assaulted Shamshad Bhanu (deceased). The complainant came to know from one Sharifa that the accused persons have assaulted the deceased, lifted the body and took out the body from their house. On that information, the first informant informs the police that the accused persons must have committed the murder of the deceased and thereafter, threw the dead body into the well. But during the course of investigation, it appears to the police that this portion of the first information report was not supported by the statement of Sharifa. Perhaps, that may be the reason the police have restricted the provision under Sections 498 -A and 306 of IPC. Admittedly, the first informant is not an eyewitnesses to the incident. He receives the information from one Sharifa. I have also carefully perused the statement of witnesses particularly, the said lady Sharifa. On careful and meticulous perusal of the statement, it disclose that she never stated that the accused persons have actually lifted the body of the deceased and that they were transported the body on that particular date. But on the other hand, she has stated that on the day of the incident at about 7.00 p.m. there was quarrel in the house of the accused and at about 1.30 a.m. quarrel was intensified but she did not came out. At about 3.00 a.m. one Haseena came to the upstairs where this girl was sleeping and informed that Shamshad Banu (deceased) died due to drowning in a well. Thereafter, they came down and went near the said well and saw the dead body. The statement of this witness does not disclose that she actually saw the accused persons lifting the body of the deceased. The other important aspect in the charge sheet is that the police have recorded the statement of one Haseena, who actually saw the deceased for the last time. She has stated in her evidence that on that particular day at about 1.30 a.m., after hearing the galata in the house of the accused, she opened a window of the house and saw that the accused persons were quarreling with the deceased and she saw the deceased going away from the house. At that time, the accused persons were telling the deceased to go out anywhere. But she did not see where actually the deceased gone but at about 3.00 a.m. accused No. 1 himself came and informed the said lady that the deceased jumped into the well and died. Therefore, even after the galata and the assault on the deceased, this lady saw the deceased going away from the house alone. She also never said that the accused persons also went along with the deceased. None of the witnesses have stated anything about the death of the deceased and the participation of the accused persons in committing the murder of the deceased. The records also disclose that the prosecution has already led evidence of one of the witnesses i.e., PW. 1 (CW. 1). He has reiterated the contents of the first information report. At paragraph -3, he has actually stated that his sister was killed by the accused persons in the house and dead body was thrown into the well situated at a distance of less than half kilometer from the house of the accused persons. This evidence coupled with the postmortem examination report persuaded the learned Sessions Judge to alter the charges already framed against the accused persons. But in my opinion, PW. 1 is not an eyewitness to the incident. He received the information from the other sources and he never said about the said source of information. Such an hazy material ought not to have been considered by the Court. The learned Sessions Judge has made an observation that the witness by name Sharifa has stated before the police that the accused persons have actually lifted the body of Shamshad Begum and later on in the morning, the dead body was found in the well. I do not understand from where the learned Sessions Judge has got this particular information. As I have already narrated, meticulous reading of the statement of the witness -Sharifa discloses that she nowhere stated that she saw the accused persons lifting the dead body of the deceased. Therefore, in my opinion, merely because, the doctor has stated that there were injuries on the dead body which were ante -mortem in nature, that in no way connects the accused persons to the murder of the deceased. There should be an independent material in order to alter the charges. Mechanically and solely relying upon the postmortem examination report without the other materials on record, the Court cannot alter the charges. Moreover, in this case, though those injuries were present on the dead body, the doctor was of the firm opinion that death was due to drowning. Even accepting for a moment that the accused persons have assaulted the deceased, made her reckless and lifted and thrown into the well, for all those things there should be some material on record to alter the charges. Therefore, in my opinion, alteration of charges merely on the basis of the post mortem report is not tenable.